legal methods.docx

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Jurisprudence

The word Jurisprudence is derived from a Latin word Jurisprudentia which

means knowledge of law. In the Latin language jure or juris means law and

prudentia means skill or knowledge1.

Jurisprudencethen signifies a practical knowledge of law and its application2.

It is a science which ascertains the fundamental principles of which the law is

the expression. Jurist of different ages have tried to give a definition of the term

Jurisprudence. But no definition can be said to be correct in its absolute

sense.

Austin3defines jurisprudence as Science of law which deals with analysis of

the concept or its underlying principles.

As per Salmond,4jurisprudence can be defined in two senses

1. In the Generic sense jurisprudence can be defined as Science of CivilLaw

2.

In the Specific sense jurisprudence can be defined as the science of thefirst principle of civil law.

According to E.W. Patterson5, defines Jurisprudence it means a body of

ordered knowledge, which deals with a particular species of law.

According to Jul ius Stone6,jurisprudence means Lawyers extroversion. It is

the lawyers examination of the precepts, ideals and techniques of the law in the

light derived from present knowledge in disciplines other than the law.

1When we speak of a person as a jurist, what we imply in his knowledge which is of a special kind that it is

comprehensive and such as to enable him to formulate general truths; or in other words the knowledge is

scientific. This means that the jurisprudence is in general the same as that of all science; a complete grasp, a

systematic penetration of its subject-matter; the power of following the most general propositions into their

minutest ramification and inversely of ascending from the most concrete care, through all intermediate stages

of thought to the principle which governs itMoyle, Introduction to the Institute of Justinions. P. 61.2T.E. Holland, The Elements of Jurisprudence (13

thEd.), pp. 6, 7.

3The Province of Jurisprudence Determined

4

Salmond, Jurisprudence (10

th

Ed.) p. 15E.W. Patterson, Jurisprudence (1

stEd.) p.1

6Julius Stone, The province and Functions of Law p. 25


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It is the name given to a type of investigation into law, an investigation of an

abstract, general and theoretical nature, which seeks to lay the essential

principles of law and legal system. It, as philosophy of law attempts to correlate

with Social values and provides practical solutions by way of fusion of facts,

justice and value. The people of this world have formed certain ideas and

conceptions about the nature if justice and law. It involves the study of general

theoretical questions about the nature of law and legal systems, about the

relationship of law to justice, morality and about the social nature of law. It, as a

science of law is primarily concerned with regulation of human conduct in

accordance with the set values, needs and goals of each society. As the values,

needs and goals are of a changing character, the nature of jurisprudence also

keeps on changing to cater to the need of a particular society.

Jurisprudence is the most important and the most useful of legal studies as it

deals with the fundamental principles on which rests the superstructure of law.

It is very helpful as it provides an opportunity to bring the theory and life into

focus and how to think rather than just to know. It furnishes such materials

which ultimately help in cultivating ones own ideas in relation to a particular

theory.

Jurisprudenceis a subject whose knowledge is the basis and the foundation of

the whole legal studies and that is why it has considerable importance for the

law students, law teachers, practicing lawyers and even the judges. It is not

mere knowledge of law; it is something more than that.


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WHAT IS LAW

The word `law` is a general term and over a period of time attained different

connotations to signify varied purposes. Persons carrying different vocations

prefer to identify `law` as to the purpose the prescribed set of rules are intended

to achieve: - (i) A Citizen may think of law as a set of rules, which he must

obey. (ii) A Lawyer who `practices law` may think of law as a vocation. (iii) A

Legislator may look at law something created by him. (iv) A Judge thinks of

law as a guide and principles to be applied to making decisions. (v) A Social

Scientist may think of law as a means of social control. (vi) A LegalPhilosopher may consider law as `dictate of reason` or `right reasoning. It is

often preceded by an adjective to give it a more precise meaning e.g.

Commercial/ Mercantile law, Civil law, Criminal law, Industrial law,

International law. In the legal sense with which we are concerned in our study

of Commercial Laws, the definition of `law` includes all the rules and principles

which regulate our relations with other individuals and the State and which are

enforced by the state.

DEFINITON OF `LAW`

ARTICLE 13 (3) OF CONSITTUTION OF INDIA Clause 3 of Article 13 of

the Constitution of India defines `law` as under (a) `law` includes any

Ordinance, order, bye-law, rule, regulation, notification, custom or usage having

context of the provisions of the Constitution of India may also be defined as

It is an Act passed by the legislature and assented to by the President of India

or Governor of a State. [Arts 111 and 200 of the Constitution of India].

Law, like the State itself, is the product of history. In every country it has passed

through various stages of development and several factors have contributed to

its evolution.


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All these factors are described as the sources of law. Sources of law means

the origin from which rules of human conduct come into existence and derive

legal force or binding characters. It also refers to the sovereign or the state from

which the law derives its force or validity.

Several factors of law have contributed to the development of law. These

factors are regarded as the sources of law.

1 Precedents

2 Customs

3 Legislation

4 Statutory interpretation

5 Preparatory works


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The Sources of Law

By this expression is understood the authority from which the laws derive their

force.

The power of making all laws is in the people or their representatives, and none

can have any force whatever, which is derived from any other source. But it is

not required that the legislator shall expressly pass upon all laws, and give thesanction of his seal, before they can have life or existence. The laws are

therefore such as have received an express sanction, and such as derive their

force and effect from implication. The first, or express, are the Constitution of

the United States, and the treaties and acts of the legislature which have been

made by virtue of the authority vested by the Constitution. To these must be

added the Constitution of the state and the laws made by the state legislature, or

by other subordinate legislative bodies, by virtue of the authority conveyed by

such Constitution. The latter, or tacit, received their effect by the general use ofthem by the people, when they assume the name of customs by the adoption of

rules by the courts from systems of foreign laws.

The express laws, are first, the Constitution of the United States; secondly, the

treaties made with foreign powers; thirdly, the acts of congress; fourthly, the

Constitutions of the respective states; fifthly, the laws made by the several state

legislatures; sixthly, laws made by inferior legislative bodies, such as the

councils of municipal corporations, and general rules made by the courts.The Constitution is an act of the people themselves, made by their

representatives elected for that purpose. It is the supreme law of the land, and is

binding on all future legislative bodies, until it shall be altered by tho authority

of the people, in the manner, provided for in the instrument itself, and if an act

be passed contrary to the provisions of the Constitution, it is, ipso facto, void.


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Treaties made under the authority of the Constitution are declared to be the

supreme law of the land, and therefore obligatory on courts.

The acts and resolutions of congress enacted Constitutionally, are of course

binding as laws and require no other explanation.

The Constitutions of the respective states, if not opposed to the provisions of

the Constitution of the United States, are of binding force in the states

respectively, and no act of the state legislature has any force which is made in

contravention of the state Constitution.

The laws of the several states, Constitutionally made by the state legislatures,

have full and complete authority in the respective states.

Laws are frequently made by inferior legislative bodies which are authorized

by the legislature; such are the municipal councils of cities or boroughs. Their

laws are generally known by the name of ordinances, and, when lawfully

ordained, they are binding on the people. The courts, perhaps by a necessary

usurpation, have been in the practice of making general rules and orders, which

sometime affect suitors and parties as much as the most regular laws enacted by

congress. These apply to all future cases. There are also rules made in particular

cases as they arise, but these are rather decrees or judgments than laws.

The tacit laws, which derive their authority from the consent of the people,

without any legislative enactment, may be subdivided into; 1st. The common

law, which is derived from two sources, the common law of England, and the

practice and decisions of our own courts. It is very difficult, in many cases, to

ascertain what is this common law, and it is always embarrassing to the courts.

In some states, it has been enacted that the common law of England shall be the

law, except where the same is inconsistent with our Constitutions and laws.

2d. Customs which have been generally adopted by the people, have the force

of law.

3d. The principles of the Roman law, being generally founded in superior

wisdom, have insinuated themselves into every part of the law. Many of the

refined rules which now adorn the common law appear there without any

acknowledgment of their paternity, and it is at this source that some judges dipt

to get the wisdom which adorns their judgments. The proceedings of the courts


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of equity and many of the admirable distinctions which manifest their wisdom

are derived from this source. To this fountain of wisdom the courts of admiralty

owe most of the law which governs in admiralty cases.

4th. The canon law, which was adopted by the ecclesiastical courts, figures inour laws respecting marriage, divorces, wills and testaments, executors and

administrators and many other subjects.

5th. The jurisprudence, or decisions of the various courts, have contributed

their full share of what makes the law. These decisions are made by following

precedents, by borrowing from the sources already mentioned, and, sometimes

by the less excusable disposition of the judges to legislate on the bench.

The monuments where the common law is to be found, are the records, reportsof cases adjudicated by the courts, and the treatises of learned men. The books

of reports are the best proof of what is the common law, but owing to the

difficulty of finding out any systematic arrangement, recourse is had to treatises

upon the various branches of the law. The records, owing to their being kept in

one particular place, and therefore not generally accessible, are seldom used.

Like many other terms used in jurisprudence, the word source7has been given

more than one meaning. The expression source of l aw may mean the origin

from which rules of human conduct came into existence and derived legal force

or binding character. Since the origin, growth and basis of law has been

different in different stages of social development, different jurists have pointed

out different sources as more authoritative. According to some jurists, a source

of lawis the society itself while for others will of the sovereign is considered to

be the exclusivesource of law.

The expression source of law is capable of three meaning:

1. It may mean the formal source that which confers binding authority asa rule and converts the rule into law. The state, therefore, is the formal

sources of law and for every law this type of source is the same, the

will of the state. No rule can have authority as law unless it has

received the express or tacit acceptance of the state.

2. The expression source of law may mean the place, where, if a personwants to get information about the law, he goes to look for it. In this

sense the term source means the literary sourcei.e. that from which

7 Literal meaning of the term source is rising from the ground the origin or the spring.


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actual knowledge of the law may be gained, e.g., statutes, reports of

decided cases and texts books.

3. The expressions sources of law may mean that which supplies thematter on the content of the law, statute, precedents or judge made law,

all come under this category. These are all material sources.

Views of Analytical School of Law:

1.Immediate author or Direct: - Austin gives three meanings of the termsources of law- the immediate author of the law is the person or body of

persons by whom the rules was originally formulated giving it the force of

law. Such immediate sources can be :

(a)Legislature or judiciary,(b)A political subordinate acting either as a legislature or judiciary,(c)The persons whose conduct forms a custom,(d)The person who by contract submits themselves to a rule of conduct

towards each other.

Austin observed that either directly or remotely the sovereign or supreme

legislature is the immediately and directly laws have different authors.8Thus,

the supreme legislature is the author or sources of the laws which it enacts.

2.Historical documents. - According to Austin the second meanings of thesources of law are the earliest or original existing documents from which the

body of the law may be known or conjectured e.g., the digest and code of

Justinian in Rome, the writing of Bracton, Coke and Littleton are regarded as

authoritative in their sense as they were manifestation of Manus code and

commentaries of Yajnavalkya, Vijnaeshwar etc. are examples of this kind of

source.

3. Causes.The third meaning of the term source denotes the causes whichhave brought into existence rules which have subsequently acquired that

force e.g., custom, legislation, rights, judicial decision, religious and

scientific discussion etc.

Starting with his basic formulation of the definition of law as the command of

the sovereign Austin puts sole reliance on one point viz.,sovereign is the only

source of law. According to him legislation is the most appropriate, because it is

8 Austin, Jurisprudence Vol. II, p. 509 at p. 510


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the most direct expression of the sovereigns will. To this, C.K. Allen opines,

that nobody ever supposed that law consisted solely of legislation.9The most

extreme Austinian dogma could not abolish the distinction between iusand lex.

Views of Historical School of Law

As against the views expressed by the jurists belonging to the Analytical

School, the Jurists of Historical School take an entirely different position. Thus,

Savigny, the founder of Historical School says that law is found, it is not

made.10 It is the spontaneous evolution of the natural spirit having its basis in

the social pressure behind it. The foundation of law has its existence; its really

in the common consciousness of the people (Volkgiest). This common

consciousness is manifested in the practice, usages and customs of the people.

Therefore, custom is the source of law. To him source of law meant the material

from which law derives not its validity but its content. Thus, he disagrees with

Austins and Analytical Schools view that the sovereign or the supreme

legislature is the sole source of law.

Grays view

John Chipman Gray, an American jurist, drew a sharp distinction between what

he called the law on the one hand and the source of law on the other hand. 11

To him the law consists of the rules authoritatively laid down by the courts in

their decisions, while he looked for its sources to certain legal and non-legal

materials upon judges customarily fall back in fashioning the rules which make

up the law. Five such sources listed by him are listed below:

i. Acts of legislative organs,ii. Judicial precedents,

iii. Opinions of experts,iv. Customs,v. Principles of morality including axioms of public policy.

It may be concluded that the only recognized legal sources of law at present are-

i. Custom,ii. Precedent, and

iii. Legislation.9

C.K. Allen, Law in the making (7

th

Ed.) p. 2.10 Maine and Puchta agreed with this view.

11 Gray, The Nature and sources of law (2

nd Ed., New York, 1921) pp. 123-125


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To these may be added one more viz., Agreement which are valid under the

law and which give rise to conventional law. It cannot, however, be defined

that the above authentic sources of law may draw their content and matter from

diverse channels, may it be religion, morality, equity, professional opinion,

views of text writers, foreign law, foreign judgments, etc.

Law, like the State itself, is the product of history. In every country it has passed

through various stages of development and several factors have contributed toits evolution.

All these factors are described as the sources of law which may be outlined asfollows:-

1. Custom:

Custom is one of the earliest sources of law. In the primitive society all disputes

were decided in accordance with the prevailing social customs. In the

beginning, when the social organisation was simple, customs were based on thegeneral usage of the family, clan or tribe.

No one can say exactly when and how custom arose, except that it was shaped

by the cooperative action of the whole community and not by any kingly or

legislative command. But one thing is clear, that customs are accepted andfollowed as a matter of habit.

Their sanction is utility or the general desire of men for order and justice.

Sometimes people choose to do a certain thing as a matter of convenience.

When it is repeated, it becomes a habit and passes from one generation to

another till its utility is lost to the community. Sometimes a custom may growaccidentally and people begin following it.

The various schools of jurisprudence are in substantial agreement upon the

importance of customs as a source of law. Customs are not laws in the politicalsense of the term.

But when the State recognizes these customary rates as binding, they acquire

the status of law. No State can afford to ignore the customs of the land, not evenconquerors that impose new legal systems on defeated countries.

If it does, the people who follow these customs will revolt against the authority

of the State. In the great book of law, says Maclver, the State merely writesnew sentences and here and there scratches out an old one.


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Much of the book was never written by the State at all, and by all of it the Stateitself is bound, save as it modifies the code from generation to generation.

The State can no more reconstitute at any time the law as a whole than a man

can remake his body. The common law of England consists mainly of customsand the courts take due cognizance of it. Customary law is also an integral part

of the legal framework in India. A custom is a rule which in a particular family

or in a particular district or in a particular section, class or tribe, has from long

usage obtained the force of law. The dictionary of English law[citation needed]defines custom as a law not written, which being established by long use and

consent of our ancestors has been and daily is put into practice. Custom as a

source of law got recognition since the emergence of savigny on the horizon of

jurisprudence. It is an exemption to the ordinary law of the land, and every

custom is limited in its application.

Customs have always been an important source of law. The two bones of

contention regarding customs in Hindu Law are however:

1 Its validity under the smriti law

2 Its relevancy to castes and tribes which are not governed by the smriti law.

Because of the working women belonging to the lower strata of the society, the

various castes and tribes had relatively more woman oriented inheritance laws

as opposed to the higher castes where women mostly just maintained thehousehold. This is the reason why the efforts were at first made to make lawsuniform across Hindu Law.

Among the pagan Arabs before Islam, inheritance rights were confined

exclusively to the male relatives. The Koran abolished all these unjust customsand gave all the female relatives inheritance shares:

"From what is left by parents and those nearest related there is a share for menand a share for women, whether the property be small or large --a determinateshare"

Muslim mothers, wives, daughters, and sisters had received inheritance rights

thirteen hundred years before Europe recognized that these rights even existed.


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The division of inheritance is a vast subject with an enormous amount of details.

The general rule is that the female share is half the male's except the cases in

which the mother receives equal share to that of the father. This general rule if

taken in isolation from other legislations concerning men and women may seem

unfair. The view of Muslim Scholars and Law-makers on this issue is howeveris as follows, in order to understand the rationale behind this rule, it is necessaryto keep in mind that the financial burdens on a Muslim male is more than that

on a female. During marriage, a Muslim husband is expected to give gifts to his

wife whereas there is no such expectation attached to the wife. Also the

earnings of the husband are usually earmarked for the maintenance of parents,

wife and children and unmarried or widowed sisters if any. The wife on theother hand enjoys all benefits of her property and earnings. She has no liability

to maintain anybody. To add to it all, Islam as a faith propagates the idea of

marriage, denounces divorce and does not treat celibacy or abstinence as a

virtue. Therefore it is the preaching of family life all the way. And hence it is

evident that a male member of an Islamic family has more financial liability

than a woman, therefore his share in a property distribution should be logically

more and therefore inheritance rules are meant to offset this imbalance so thatthe society lives free of all gender or class wars.

Prior to the uniformisation and codification of laws however, it is the customs

or personal laws as we call them, which guided the various religions and also

different castes and tribes within the religion. Since ancient times the framing of

all property laws have been exclusively for the benefit of man, and woman havebeen treated as subservient, and dependent on male support. The right to

property is important for the freedom and development of a human being. And

irrespective of how much a religion might try to justify the giving of lesser

property rights to a woman, it is unfair and absolutely uncalled for in today's

society as well as the society in which such laws existed and were passed onthrough generations.

2. Religion:

In the primitive community custom was law and law was religion. Law and

religion were so inextricably mixed up that the rules of life had a religioussanction.

The institution of, first, the magician and, then, the priest-king, in the early

stages of the development of the State, is a clear illustration of the relationbetween religion and politics.


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Indeed, as Woodrow Wilson points out, the early law of Rome was little

more than a body of technical religious rules, a system of means for obtainingreligious rights through the proper carrying out of certain religious formulas.

The most influential basis of the Hindu Law in India is the code of Manu. TheMohammedan Law derives itself from the Quran and the Shariat.

Islamic law now forms the basis of the legal system of the Islamic Republic of

Pakistan replacing the prevailing laws by those ordained by the Quran andShariat and evolving an Islamic Jurisprudence.

President Zia- ul-Haq, for instance, replaced the wealth tax and agriculture

produce laws by Zakat and Usur. Religion, thus, is an important and in some the

only source of law, as in the Arabian countries, Iran and Afghanistan.

3. Judicial Decisions:

Gettel says that the State arose not as the creator of law, but as the interpreter

and enforcer of customs. When men live in society disputes are sure to arise. In

primitive society disputed points were referred to the wisest men in the

community and their decisions were accepted and made precedents for similarcases.

When social organisation became more complex and tribes intermixed either for

the purpose of trade or matrimony, conflict of customs became more usual. Atthat time the necessity was felt to supplement custom by interpretation.

Whenever custom failed to give a just solution or was obviously not suited to

the case, the dispute was decided according to commonsense. Such decisionsbecame judicial precedents.

In the beginning they were oral and unwritten and passed from generation togeneration by tradition. But in order to make them more definite they were later

reduced to writing.

In Britain, before the rise of Parliament, judges went on circuit and were

responsible for evolving uniformity in the law. By comparing decisions and bybasing new decisions on preceding ones, they developed the Common Law.

This was not a characteristic only of early law. In our own times a judge, while

applying the law, interprets it, and in doing so he modifies or explains it either

subconsciously or deliberately. Customs, too, are to be fitted to dynamic

conditions of society and their rigidity is lubricated by the progressive socialforces.


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Even a written law requires filling in the gaps. This is done by judges, and

Justice Holmes, of the United States Supreme Court, gave us a bare truth when

he said that judges do and must make laws. Thus, law in its most characteristicform is the case-law or judge-made law.

4. Scientific Commentaries:

Scientific discussions by eminent jurists also modify and develop law. In every

country the greatest importance is attached by both judges and lawyers to the

opinions of legal luminaries. The jurists collect and arrange in logical form past

customs, decisions, and laws. They discuss and elaborate the existing law andmake it clear where it is ambiguous.

In this process they express their opinions as to what the law ought to be and its

effect on society. On the basis of the past and the present law, they are able toarrive at general principles which may guide future legislation and indicate in

broad lines the gaps that need filling in. The opinions of the commentators arenot decisions.

They are only arguments. When these arguments are repeatedly recognized,

they amount to accepted decisions. To sum up: The commentator, by

collecting, comparing, and logically arranging principles, customs, decisions

and laws, lays down guiding principles for possible cases. He shows the

omissions and deduces principles to govern them.

5. Equity:

The term equity means equality or fairness. The function of a judge is to

administer justice. But law can never fit in every case. At many points it may be

silent and at others it may be ambiguous.

When the existing law does not provide any relief, principles of equity are

applied and cases are decided according to commonsense or fairness. Moreover,

positive law, with the lapse of time, becomes unsuitable for new and changedsocial conditions. To make it suitable, either the law should be changed by thelaw-making authority, or there should be some informal method of changing it.

Equity is an informal method of making new law or altering old law, dependingon intrinsic fairness or equality of treatment. Thus, equity is intended to provide

relief where the existing law affords none. It aims at securing equality or justice

and it is based on what earlier writers used to describe as the law of nature, thatis, law guided by reason.


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The interference of equity with law, according to Sir Henry Maine, is open and

avowed. Equity not only supplements law, but it also makes law flexible. It isan informal method of making new law and altering the old one.

Equity, too, is a kind of judge-made law. But there is one important differencebetween the two. In case-law, the judge interprets the existing law. In equity, he

adds to the law what is missing therein and creates a new one in order to make it

suitable for the changed conditions.

6. Legislation:

In addition to selecting customary usages for enforcement, Kings issued decrees

concerning new matters. This practice was the source of legislation, which

became the primary concern of the legislative assemblies with the emergence of

a representative government. But the approval of the King or President is asmuch there now as it was in the past.

Legislation is, now, the most prolific and direct source of law. Law is regarded

as the expression of the will of the people and the will of the people is expressedthrough legislative assemblies which are representative bodies. All other means

of making laws have now been swallowed up by this modern method oflegislation. Custom and equity are being replaced by definite legislative acts.

The codification of law has limited the scope of judicial decisions, and scientificcommentaries are used simply to discuss cases. Legislation has, thus, tended to

supplant other sources of law. But we cannot ignore the practical utility of

customs, equity, religious practices and judicial decisions. Though all these

forces have not remained direct sources of law, yet they constantly influence itsformulation.

Woodrow Wilson has beautifully expressed his views on the process of thedevelopment of law. He says, Custom is the earliest fountain of law but

religion is a contemporary, an equally prolific, and in the same stages of

national development, an almost identical source.

Adjudication comes almost as authority itself, and from a very antique time

goes hand in hand with equity. Only legislation, the conscious and deliberate

organisation of law, and scientific discussion, the development of its principles,

await an advanced stage of its growth in the body-politic to assert their

influence in law-making.

All the sources have a relevance to the operation of business and management

which means that managers and employees have to be aware of them and theirdifferent features.


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PRINCIPAL FEATURES

1. STATUTE. law made by the Government known also as legislation andstatute.

a. This is law made by Parliament. A Bill goes through several procedures and

debates in Parliament and when it is finally agreed it receives the Royal Assent.This is now a formality as our system of government is known as a

constitutional monarchy. This means that the Queen is the Head of State butholds no real power as this is vested in the government.

b. Once an Act is passed it remains law until it is amended or repealed by a later

Act of Parliament. Therefore, some Acts are old and yet still are relevant

modern law. Some examples of particular relevance are The PARTNERSHIP

ACT 1890 and The GAMING ACT 1845.

c. It is very relevant to business and management with such impact as in The

Employment Rights Act 1996, The Health and Safety at Work Act 1974 and theCompanies Act 1985. All of these are relevant to the study of this unit.

d. Statutes can cover criminal law and civil law issues.

2. DELEGATED LEGISLATION made by bodies authorised by the

Government to make regulations to deal with certain types of behaviour.


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Bibliography1.Jurisprudence by Salmond2.T.E. Holland, The Elements of Jurisprudence (13thEd.)3. Salmond, Jurisprudence (10thEd.)4.E.W. Patterson, Jurisprudence (1stEd.)5.Julius Stone, The province and Functions of Law6.Austin, Jurisprudence Vol. II7.C.K. Allen, Law in the making (7th Ed.)8.Gray, The Nature and sources of law (2nd Ed., New York,

1921)

References from the Internet1. www.google.com2. www.law.cornell.edu/wex/jurisprudence3. www.merriam-webster.com/dictionary/jurisprudence4. www.jasononline.com/law/juris.htm5. www.indiankanoon.com6. www.vakilno.1.com7. www.scconline.com.

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